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Genarlow Wilson's 10-Year Prison Sentence Set Aside as Cruel and Unusual Punishment:

Here's the Georgia Supreme Court decision, which is 4-3. The bottom line:

[W]e conclude that the habeas court properly ruled that Wilson’s sentence of ten years in prison for having consensual oral sex with a fifteen-year-old girl when he was only seventeen years old constitutes cruel and unusual punishment.

I'll have more when I finish reading the case. Thanks to Aeon Skoble (HNN) for the pointer.

UPDATE: As promised, here's more (some paragraph breaks added):

Legislative enactments are the clearest and best evidence of a society’s evolving standard of decency and of how contemporary society views a particular punishment. In determining whether a sentence set by the legislature is cruel and unusual, this Court has cited with approval Justice Kennedy’s concurrence in Harmelin v. Michigan. Under Justice Kennedy’s concurrence in Harmelin, as further developed in Ewing v. California, in order to determine if a sentence is grossly disproportionate, a court must first examine the "gravity of the offense compared to the harshness of the penalty" and determine whether a threshold inference of gross disproportionality is raised.

In making this determination, courts must bear in mind the primacy of the legislature in setting punishment and seek to determine whether the sentence furthers a "legitimate penological goal" considering the offense and the offender in question. If a sentence does not further a legitimate penological goal, it does not "reflect[] a rational legislative judgment, entitled to deference," and a threshold showing of disproportionality has been made. If this threshold analysis reveals an inference of gross disproportionality, a court must proceed to the second step and determine whether the initial judgment of disproportionality is confirmed by a comparison of the defendant’s sentence to sentences imposed for other crimes within the jurisdiction and for the same crime in other jurisdictions....

Here, the legislature has recently amended § 16-6-4 to substitute misdemeanor punishment for Wilson’s conduct in place of the felony punishment of a minimum of ten years in prison (with the maximum being 30 years in prison) with no possibility of probation or parole. Moreover, the legislature has relieved such teenage offenders from registering as a sex offender. It is beyond dispute that these changes represent a seismic shift in the legislature’s view of the gravity of oral sex between two willing teenage participants. Acknowledging ... that no one has a better sense of the evolving standards of decency in this State than our elected representatives, we conclude that the amendments to § 16-6-4 and § 42-1-12 [the sex offender registration statute] reflect a decision by the people of this State that the severe felony punishment and sex offender registration imposed on Wilson make no measurable contribution to acceptable goals of punishment.

[Footnote: Although the dissent correctly notes that the General Assembly stated that the 2006 Amendment to § 16-6-4 should not be applied retroactively, the dissent erroneously concludes that the cruel and unusual punishment analysis ends there.... [C]ruel and unusual punishment is an evolving constitutional standard and ... the most objective evidence of that evolving standard are legislative enactments.... Thus, although this Court cannot apply the 2006 Amendment to § 16-6-4 retroactively, we can rely on that amendment as a factor representative of the evolving standard regarding the appropriate punishment for oral sex between teenagers.]

Stated in the language of Ewing and Harmelin, our legislature compared the gravity of the offense of teenagers who engage in oral sex but are within four years of age of each other and determined that a minimum ten-year sentence is grossly disproportionate for that crime. This conclusion appears to be a recognition by our General Assembly that teenagers are engaging in oral sex in large numbers; that teenagers should not be classified among the worst offenders because they do not have the maturity to appreciate the consequences of irresponsible sexual conduct and are readily subject to peer pressure; and that teenage sexual conduct does not usually involve violence and represents a significantly more benign situation than that of adults preying on children for sex....

[B]ased on the significance of the sea change in the General Assembly’s view of the appropriate punishment for teenage oral sex, we could comfortably conclude that Wilson’s punishment, as a matter of law, is grossly disproportionate to his crime without undertaking the further comparisons outlined in Harmelin and Ewing. However, we nevertheless will undertake those comparisons to complete our analysis.

A comparison of Wilson’s sentence with sentences for other crimes in this State buttresses the threshold inference of gross disproportionality. For example, a defendant who gets in a heated argument and shoving match with someone, walks away to retrieve a weapon, returns minutes later with a gun, and intentionally shoots and kills the person may be convicted of voluntary manslaughter and sentenced to as little as one year in prison. A person who plays Russian Roulette with a loaded handgun and causes the death of another person by shooting him or her with the loaded weapon may be convicted of involuntary manslaughter and receive a sentence of as little as one year in prison and no more than ten years. A person who intentionally shoots someone with the intent to kill, but fails in his aim such that the victim survives, may be convicted of aggravated assault and receive as little as one year in prison. A person who maliciously burns a neighbor’s child in hot water, causing the child to lose use of a member of his or her body, may be convicted of aggravated battery and receive a sentence of as little as one year in prison. Finally, at the time Wilson committed his offense, a fifty-year-old man who fondled a five-year-old girl for his sexual gratification could receive as little as five years in prison, and a person who beat, choked, and forcibly raped a woman against her will could be sentenced to ten years in prison.

There can be no legitimate dispute that the foregoing crimes are far more serious and disruptive of the social order than a teenager receiving oral sex from another willing teenager. The fact that these more culpable offenders may receive a significantly smaller or similar sentence buttresses our initial judgment that Wilson’s sentence is grossly disproportionate to his crime. Finally, we compare Wilson’s sentence to sentences imposed in other states for the same conduct. A review of other jurisdictions reveals that most states either would not punish Wilson’s conduct at all or would, like Georgia now, punish it as a misdemeanor. Although some states retain a felony designation for Wilson’s conduct, we have found no state that imposes a minimum punishment of ten years in prison with no possibility of probation or parole, such as that provided for by former § 16-6-4. This review thus also reinforces our initial judgment of gross disproportionality between Wilson’s crime and his sentence.

The dissent indeed relies, as the footnote suggests, chiefly on the fact that the legislature decided that the 2006 Amendments to § 16-6-4 shouldn’t be applied retroactively. It also generally relies on the deference due legislative judgments about sentences, and on Widner v. State, a 2006 Georgia Supreme Court case that the majority distinguishes. (I won’t get into that debate; if you’re interested, read Widner and the Wilson opinions’ discussion of Widner.)

My sense of the matter: I think there are institutional problems with courts’ evaluating the length of confinement under the Cruel and Unusual Punishment Clause; it’s hard to see a good legal rule that courts can sensibly apply in a wide range of cases, and to my knowledge there isn’t the sort of textual or original meaning evidence that strongly points to requiring courts to engage in such a mushy judgment. But the Supreme Court has said that such evaluation should take place, though with a great deal of deference to the legislature. And if there is to be such an evaluation, this would look like an excellent case for setting the sentence aside, for the reasons the majority mentions.

The Georgia Legislature has decided that consensual oral sex between 17- and 15-year-olds is not a very serious transgression. (It had decided the same about genital sex years before.) That has to be the implicit judgment behind making it a misdemeanor, and the nonretroactivity provision doesn’t undermine this implicit judgment. This judgment, coupled with the comparisons with other crimes and with the behavior of other jurisdictions — and the absence of statutory aggravating factors, such as the past convictions at issue in the California Three Strikes law, which the Court has upheld — provides strong and objective evidence in favor of the Georgia Supreme Court’s conclusion.

I should say that I at first thought there was no Cruel and Unusual Punishment Clause issue here, but the Georgia Supreme Court’s analysis has persuaded me.

Finally, for those who wonder about the racial dimensions of the case, note that the four white Justices on the Georgia Supreme Court split 2-2, and the three black Justices split 2-1 in Wilson’s favor — no stark racial disparity here (though, as I noted earlier, there was "little reason to assume that there’s much of a racial dimension here" even before this decision).

Related Posts (on one page):

  1. Genarlow Wilson's 10-Year Prison Sentence Set Aside as Cruel and Unusual Punishment:
  2. Sex and Liberty:
  3. Race and the Wilson Case:
  4. Ten Years in Prison for 17-Year-Old Who Had Consensual Oral Sex with 15-Year-Old:
FantasiaWHT:
So cruel and unusual is subjective to the severity of the crime committed? I'm not familiar with this area of law, is that truly the case?
10.26.2007 1:32pm
Kenvee:
Well, yes, C&E depends on the severity of the crime to some degree, Fantasia. It's C&E to send someone to prison for life for a traffic ticket, for example.

I'm more troubled by the holding that apparently it's C&E to sentence someone to a legal time under the law just because the legislature later decides they don't want to punish future cases as severely. Particularly when the legislature has the option of making that decision retroactive but chooses not to do so. That opens the door to a flood of C&E claims every time the legislature changes a punishment range.
10.26.2007 1:42pm
Chris_t (mail):
Its a result in search of a rationale. Not that I blame them, since this whole thing has been one long slow-motion train wreck. I'm glad the court put a stop to it.
10.26.2007 1:43pm
olddude:
Proportionality is a state constitutional mandate. The following is a quote from the opinion.

Under the Eighth Amendment to the United States Constitution and
under Art. I, Sec. I, Par. XVII to the Georgia Constitution, a sentence is cruel
and unusual if it “‘“is grossly out of proportion to the severity of the crime.”’”18
10.26.2007 1:46pm
JohnO (mail):
Chris_t has it right here. This was a case where the sentence really needed to be commuted and the court viewed this as the most plausible rationale for reaching what is a just result. That's why they say that hard cases make bad law.
10.26.2007 1:48pm
Adam J:
Well, anyone who has a problem with judges being activist might want do a gut check now.
10.26.2007 1:49pm
GD (mail):
"Well, yes, C&E depends on the severity of the crime to some degree" ...

Great! What forms of mild torture are now permitted for mass murderers, molesters, etc.?
10.26.2007 1:54pm
olddude:
There's activism with a small "a" (i.e., exercising judicial review with respect to enumerated rights) and activism with a large "A" (creating new fundamental rights, or reasoning that enumerated rights serve a policy of protect certain interests and then elevating those policy objectives to de facto fundamental rights and so on). The first does not mandate the second.
10.26.2007 1:55pm
Daniel Chapman (mail):
Why? Because the ends justify the means? Just because one agrees that ten years in prison is absurd for that crime doesn't mean one has to agree that the courts should step in and correct the legislature. Frankly, decisions like this just give legislatures an excuse to continue with their "tough on crime" stances without having to deal with the harsh realities of their actions.

If anything, the governor should have stepped in, not the courts.
10.26.2007 1:55pm
DeezRightWingNutz:
"C&E"

What does the "E" stand for?
10.26.2007 1:55pm
Daniel Chapman (mail):
I got cross-posted... that was a response to Adam J's attempted defense of "judicial activism" above.
10.26.2007 1:56pm
olddude:
"Well, yes, C&E depends on the severity of the crime to some degree" ...

Great! What forms of mild torture are now permitted for mass murderers, molesters, etc.?

Answer: supermax prisons
10.26.2007 1:56pm
olddude:
GD asks, "Great! What forms of mild torture are now permitted for mass murderers, molesters, etc.?"

There is the death penalty card, not torture but a tad severe and currently "permitted."
10.26.2007 2:01pm
merevaudevillian:
I'm intrigued at the "cruel and unusual punishment" analysis. The Georgial legislature passed a law altering the crime and punishment, but it deliberately chose not to make it retroactive. The Georgia Supreme Court affirmed that it couldn't apply retroactively. Then, the Court turns around and finds that "cruel and unusual punishment" requires looking to society, we can tell society's intentions most clearly from legislative pronouncements, and look, the legislature just got rid of this punishment, which must mean it's excessive.

Is there much other authority on this? Namely, using "cruel and unusual punishment" to effect a retroactive application of the law where the legislature clearly did not want it retroactively applied? I think it's a fascinating notion.
10.26.2007 2:13pm
therut:
I just saw some reportorette on MSMBC saying he will now be able to make lemonade out of a lemon and become somehow involved for greater justice. Good grief. If I was him I would be a little embaressed knowing that the whole country knows I went down on a 14 year old. Has anyone else noticed how much oral sex is in the news since you know who. No problem hearing about that all the time now. Kids love their new freedom. And progress just keeps happening ya know. I do think the whole law and prosecution was just stupid. But I think alot of our laws are stupid. We have way too many. This is another example of the lawyers, courts and legislature doing what parents should just have taken care of. No shame no gain.
10.26.2007 2:14pm
Aeon J. Skoble (mail):
Chris_t: "Its a result in search of a rationale"
As opposed to what? According to the legal realists, that's what happens in all cases.
10.26.2007 2:15pm
Kestrel (mail):
"If anything, the governor should have stepped in, not the courts."

Yes, the governor should have stepped in a long time ago, but he hasn't and there has been no indication that he would.
10.26.2007 2:23pm
David M. Nieporent (www):
If anything, the governor should have stepped in, not the courts.
I'm not a Georgia lawyer, but I thought from following the story from afar that the problem was that the governor couldn't do so, the way Georgia laws were written.
10.26.2007 2:24pm
DDG:
Legal realists often are wrong? (There certainly are results-oriented judges, but not all of them).
10.26.2007 2:24pm
EH (mail):
So, does this open the door to a Civil Rights case?
10.26.2007 2:25pm
PersonFromPorlock:

Is there much other authority [for] using "cruel and unusual punishment" to effect a retroactive application of the law where the legislature clearly did not want it retroactively applied?

I don't believe there's any retroactivity involved: the court simply found the sentence, even under the old law, excessive. The fact that its severity may have been authorized by the Legislature is of interest only to the behfel ist behfel school of law.
10.26.2007 2:33pm
Waldensian (mail):

Has anyone else noticed how much oral sex is in the news since you know who. No problem hearing about that all the time now. Kids love their new freedom.

I knew Clinton was to blame for this.

Of course, I'm assuming you're talking about Clinton and not, say, Larry Craig or something.
10.26.2007 2:44pm
Adam J:
olddude- I don't know about small a, considering that there appears to be little authority for their interpretation of cruel and unusual, considering that the legislature chose not to act, considering the prosecutor used it's discretion to charge &defend the sentence, and considering the governer chose not to act (presuming the Georgia gov had power to pardon).

Daniel- You might be right, but the legislature and governor had plenty of chances to step in and didn't, meanwhile a kid spent his life in prison for something nearly everyone can agree shouldn't be criminal. I'm not saying the means always justifies the ends... but it feels pretty just in this case.
10.26.2007 2:46pm
merevaudevillian:
PersonFromPorlock, that's not even what the court held:

Acknowledging ... that no one has a better sense of the evolving standards of decency in this State than our elected representatives, we conclude that the amendments to § 16-6-4 and § 42-1-12 [the sex offender registration statute] reflect a decision by the people of this State that the severe felony punishment and sex offender registration imposed on Wilson make no measurable contribution to acceptable goals of punishment.
10.26.2007 2:51pm
Daniel Chapman (mail):
I agree that a ten year sentence for that offense is absurd, but that doesn't mean I have to accept that the Court acted appropriately here. You tried to use the fact that I agree with the result here as an argument in favor of "judicial activism," and I called you out on it.

I also think the Court has done more harm than if they had left the kid to serve out his sentence. Watch for other states to use this case as an argument against reducing criminal penalties.
10.26.2007 2:53pm
x (mail):
PfromP... Isn't it a great thing our black-robed betters can just wave away those pesky 'rules'? Really, why do we have to go through all that rigmarole of voting for legislators and governors, listening to them bloviate at the capitol, and passing those nuisances called laws when we could just skip the whole thing and let the all-wise all-knowing (since they used to be lawyers, of course!) judges met out punishments for anything they decide to call a crime (or not, depending on how they feel that day)?
10.26.2007 2:55pm
Roger Schlafly (www):
Why does the court say "consensual oral sex with a fifteen-year-old girl", when the girl was under the age of consent?
10.26.2007 2:58pm
merevaudevillian:
One other thought: at what point in time do we examine whether the punishment was, or is, "cruel and unusual"? For instance, the majority opinion heavily values society's view of oral sex between teenagers based upon the legislature's amendments, which reflect contemporary standards. But the legislature passed the bill in the mid-2006, well after Wilson's sentence in early 2005 and after Wilson's crime in late 2003. (In this case, admittedly, the time period window is relatively small, but it would affect whether to look at the legislature's amendment at all.)

That said, which period is relevant: the present court, the date of the sentence, or the date of the crime? It seems to be the present court, but that doesn't seem intuitively appropriate; that is, at the time one was punished, it may have been constitutional, but it is now unconstitutional and one may escape that punishment. I imagine that the habeas cases critiquing the use of lethal injections doing the same thing, but for some reason it doesn't quite seem proper.
10.26.2007 3:03pm
Per Son:
I love the assumptions here. Oral sex is more in the news because of a particular person. Could it be that oral sex (as well as anal) are ocurring more often because of abstinence-only education? Could it be???? I have heard news reports stating the such education only has had some success at curbing coitus, but no success at limiting STDs and other forms of sex.

Additionally, whether the news reports it more or less MEANS ABSOLUTELY NOTHING!!!! Teddy Roosevelt stopped a major crime wave when he was chief of police in NYC, after asking the reporters to stop reporting every last damn criminal act.
10.26.2007 3:07pm
AF:
Why does the court say "consensual oral sex with a fifteen-year-old girl", when the girl was under the age of consent?

Because the court was speaking English, not legalese?
10.26.2007 3:08pm
Adam J:
Daniel- How'd you call me out? I merely want people to recognize their their opposition to "judicial activism" might wane when they like the result. It's not an argument in favor of judicial activism, it's just to test people's consistency.
10.26.2007 3:09pm
Daniel Chapman (mail):
I said "you're wrong," I provided a counter example (myself), and I explained my reasoning. My guess is that the majority of "judicial activism" opponents feel exactly like me, and if you disagree, by all means, provide your own evidence. In the meantime, you're guessing, and in my case, you're wrong.
10.26.2007 3:12pm
Adam J:
I still don't see how I'm wrong, particulary since asking people to make a gut check isn't an assertion. You're seem a touch defensive...
10.26.2007 3:19pm
Daniel Chapman (mail):
"I merely want people to recognize their their opposition to "judicial activism" might wane when they like the result."

No, you're wrong. It doesn't.
10.26.2007 3:21pm
Chris Bell (mail):
David M. Nieporent is correct. The pardon power was removed from the Georgia Governor's hands years ago when people were angered by its political use.
10.26.2007 3:26pm
Adam J:
"might wane"... still no assertion.
10.26.2007 3:28pm
johnw:
Daniel Chapman -

"I also think the Court has done more harm than if they had left the kid to serve out his sentence."

Did I miss something subtle here? Thanks for upholding the sanctity of your morality over the life of a human being. You really believe that laws have an existence independent from the people they impact/ruin/jail/kill? Thats really too bad.

I have two teenagers, do you have any? I hope can keep them reigned in, for who knows what crimes against the state they might commit with their girlfriend/boyfriend?
10.26.2007 3:28pm
Chris Bell (mail):
I personally liked the press release that came out with the opinion.

"[The Court decided the case by analyzing the cruel and unusual punishments clause.] In the Court's cruel and unusual analysis . . . ."
10.26.2007 3:29pm
Kazinski:
I think the result is probably OK, if you think the results are more important than the law, but I've never heard of a worse rational for a case. Depending on the Legislature to set the "standards of decency in this State" is going to debase Georgia to a low that will place them on the lowest rungs of civilization. Bribery, debauchery, double dealing and rampant alcohol abuse will become the defacto "standards of decency" in Georgia. Oh the humanity.
10.26.2007 3:31pm
Kenvee:
DeezRightWingNutz:

Obviously C&E stands for "cruel and enusual" punishment. :) Sorry, I'm not sure how that E snuck in there. And twice, no less! I meant "C&U", of course.

GD:
Did you bother reading the very next sentence? I don't think anyone argues that a life sentence would be C&U to punish someone for jaywalking even though it's perfectly acceptable for a murder. Of course you have to look at the underlying crime committed to see if the punishment is particularly cruel or unusual. I believe the rationale is "let the punishment fit the crime."

I agree that this opinion is another shining example of bad facts make bad law. Hopefully it will stay limited, but I can picture a huge number of inmates at least trying to use it every time the legislature changes a punishment range. Glad I'm not in Georgia.
10.26.2007 3:32pm
KeithK (mail):
I'm with Daniel Chapman here. I like the end result - locking the kid up for 10 years was absurd. But the Court's reasoning is way off base here. The logic used to effectively apply the law retroactively is very troubling. but then I'm troubled by virtually every application of "cruel and unusual" and "evolving standards". It's almost always blatant activism.

The State Board of Pardons and Paroles should have stepped in and commuted the sentences. That would have been the appropriate legal means to change the penalty in this case.
10.26.2007 3:43pm
Adam J:
Kazinski... "Bribery, debauchery, double dealing and rampant alcohol abuse will become the defacto "standards of decency" in Georgia." Ah, the good ol parade of horribles argument, I never tire of hearing of it.
10.26.2007 3:44pm
SP:
I am fine with this decision, and care not to extrapolate too many overriding legal principles from it, or to have it be used to set some kind of overarching legal rule. Stupid people acted stupidly, and my only hope is that Wilson has some form of additional legal remedy.
10.26.2007 3:50pm
Seamus (mail):
David M. Nieporent is correct. The pardon power was removed from the Georgia Governor's hands years ago when people were angered by its political use.

When was that? When Governor Slaton commuted Leo Frank's death sentence?
10.26.2007 4:07pm
David Chesler (mail) (www):
Just chiming in that it's a good result with lousy possible future harm. Is there a limit to this kind of analysis? Can I get any of my old double-nickel speeding tickets taken care of? Can society every shift that something is more serious, so that a sentence that would have been to cruel or too unusual is now OK because it's now within the range that the people, as demonstrated by the legislature, now want? Does malum prohibitum have any meaning? And what about Michael Skakel, not his just-failed Tony Bryant's friend story, but that he got caught in the evolving societal idea that juvenile justice shouldn't be applied to juveniles either. (That's a whole other can of worms, and I'm sure it's a related dimension: what do you do with adults who are now convicted of crimes committed when they were juveniles, and does it make a difference if they have or have not "reformed" in the intervening years?)

I've been seeing a lot more oral sex in the news too. (I went to a nerdy high school after the sexual revolution but before AIDS and I don't remember hearing about any then.) For instance two years ago, when the Milton Academy was trying to recruit hockey players, and suspended a girl for being statutorily, orally raped.
10.26.2007 4:27pm
FYI:
If I was him I would be a little embaressed knowing that the whole country knows I went down on a 14 year old

A 15 year old went down on him (then a 17 year old). At least pretend to know the facts before starting your oral sex rant.
10.26.2007 4:31pm
CrazyTrain (mail):
Why does the court say "consensual oral sex with a fifteen-year-old girl", when the girl was under the age of consent?

And stupidest question of the day goes to . . . wait for it. . . . Roger Schafly.

Here's why genius: The analysis would be quite different if it was a 17 year old and a 10 year old (or a 5 year old). The fact that it was a 15 years old was not only relevant, but key, to the Court's decision. You may not like the decision, but only an idiot would not see that a different analysis would be necessary for a 15 year old or a 5 year old.
10.26.2007 4:46pm
CrazyTrain (mail):
Roger Shafly's comment was even dumber than I realize. He is questioning why they use the term "consensual." The "age of consent" is a legal fiction, sort of like constructive notice. Again, if it had been forcible oral sex rather than consensual oral sex, the analysis would be completely different and there would be no colorable issue of a constitutional violation as 10 years for forced oral sex would, if anything, be light.
10.26.2007 4:52pm
CrazyTrain (mail):
Just chiming in that it's a good result with lousy possible future harm.

And another example of why slippery slope arguments are often so full of it. The analysis employed by the Court has been used by the Supreme Court for decades now. Yet, I don't see any of the possible "future harms" you are supposedly worried about occurring. If anything, we see more and more examples of harsher and harsher prison sentences being upheld by the state and federal courts, e.g. the Michigan guy who got life for possession, yes only possession, of a relatively small amount of cocaine. And the US Supreme Court upheld the sentence as not cruel and unusual.
10.26.2007 4:55pm
Daniel Chapman (mail):
JohnW: If you had read the sentence immediately after the one you quoted out of context, you would know that the REASON I think the court did more harm than good is because other states are now on notice that they can't act to reduce these sentence guidelines legislatively without opening the floodgates of retroactive application.

You think there aren't a few congressmen in Georgia who thought they were voting for a law that would only be applied prospectively and now wish they had voted against it? You've got to be careful to not send the wrong message when dealing with "evolving standards of decency."
10.26.2007 4:57pm
cjwynes (mail):
I think the key thing about this decision is that the Georgia State Constitution has a "cruel and unusual punishments" clause which specificially references so-called "proportionality". I think that reviewing sentences for "proportionality" is bad policy for courts, and ought to be left to the legislature, but the Georgia state constitution says otherwise.

It does trouble me that some people will read the AP article and get the impression that the Federal constitution's "cruel and unusual punishments" clause contains a "proportionality" component. I think it's still fairly arguable that it prohibits only modes of punishment and not magnitudes of punishment, and that it is completely unconcerned with the severity of the crime (subject to the narrow exception regarding capital punishment.)
10.26.2007 4:59pm
pjohnson (mail):
I only skimmed the decision, but it looks to me as if it was based on the Georgia Constitution's definition of "cruel and unusual" as being "grossly out of proportion to the severity of the crime." Yes, they cited the 8th Amendment, and cited a few U.S. Supreme Court cases, but their decision was grounded in Georgia law. I'm not sure that it will have a huge impact elsewhere.

And CrazyTrain: knock off the attacks and try some civility.
10.26.2007 4:59pm
fishbane (mail):
I went to a nerdy high school after the sexual revolution but before AIDS and I don't remember hearing about any then.

Me too, but I had, um, a different experience. You should have joined the debating team and/or the theater club.
10.26.2007 5:01pm
PLR:
Just chiming in that it's a good result with lousy possible future harm.
I prefer that to a bad result with lousy possible future harm. Good news for a Friday afternoon.
10.26.2007 5:03pm
Martin Grant (mail):
because other states are now on notice that they can't act to reduce these sentence guidelines legislatively without opening the floodgates of retroactive application.
Is that really a deterrent to state legislatures or even a bad thing? I guess someone would have to explain to me, why you wouldn't want to make changes to sentencing guidelines retroactive.
10.26.2007 5:17pm
David Chesler (mail) (www):
if it had been forcible oral sex rather than consensual oral sex

I guess Georgia has new, new statutes about men and girls (or women and boys) making that some other crime, but I also find it notable that the court is essentially saying "statutory rape isn't rape".

There are a lot of cases of sex that wasn't forcible (or otherwise coerced or anything else that would make it rape but for the age) that has stood as rape because of the age. For instance this case that I blogged about here. (Apparently Koso is serving 18 to 30 months, without parole, for having sex with his wife.) Are they now subject to analysis as cruelly and unusually disproportionate? (Of course they might not be, because you can be convicted of rape for arranging a marriage and encouraging the wife to consent to sex with her husband.)
10.26.2007 5:29pm
David Chesler (mail) (www):
You should have joined the debating team and/or the theater club.

Well yeah - unlike the Math Team and the Chess Club (neither of which had travel nor long hours), I think there were actual girls there.
10.26.2007 5:33pm
Roger Schlafly (www):
The fact that it was a 15 years old was not only relevant, but key, to the Court's decision.
That's right. The appeal is based on the facts determined at trial, and the law. The girl was found to be 15. But the trial did not and could not have determined that the oral sex was consensual, because that is impossible under Georgia law. By saying that the oral sex was "consensual", the Georgia Supreme Court is flouting the whole notion that a state can have an age of consent.
10.26.2007 5:34pm
CrazyTrain (mail):
By saying that the oral sex was "consensual", the Georgia Supreme Court is flouting the whole notion that a state can have an age of consent.

No, it's not. It's recognizing that there is a difference between "consent" as defined in a statute and "consent" as in real consent. This is elementary, and you have to lack any common sense not to know that there is a difference between "consensual" sex with a 15 year old by someone 2 years her senior and forcing a 15 year old at gunpoint to have sex with someone 2 years her senior.
10.26.2007 5:37pm
Doug B.:
Eugene,

I respond a bit in this post, with this question: is the Eighth Amendment's prohibition on "cruel and unusual punishments" any more "mushy" or less subject to sound judicial line-drawing than the Fourth Amendment's prohibition on "unreasonable searches and seizures" or the Fifth Amendments requirements of "due process" and "just compensation." Of course, you might say that all these vague standards defy effective constitutional line-drawing. But, if one excepts the appropriateness of courts drawing hard lines when interpreting other vague amendments, I do not quite understand why the protections of the Eighth Amendment should evaporate once a person gets sentenced to a term of confinement.
10.26.2007 5:40pm
Eugene Volokh (www):
cjwynes, pjohnson: The Georgia Constitution's Cruel and Unusual Punishment Clause simply reads, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." The disproportionality analysis is the Georgia Supreme Court's own interpretation of the clause, based (as best I can tell) on the U.S. Supreme Court's interpretation of the Eighth Amendment's Cruel and Unusual Punishments Clause.

Doug B.: I'm not wild about "unreasonableness" tests, but the Fourth Amendment expressly calls for them. I'm not persuaded, as a matter of text and original meaning, that the Cruel and Unusual Punishment Clause calls for an inquiry into the reasonableness of the length of punishment (though I would be open to persuasion, of course, by suitable historical evidence).

Moreover, courts have tried to turn the Fourth Amendment test into a set of relatively administrable legal tests, with some success; my sense is that at least the pre-Harmelin/Ewing tests in the Cruel and Unusual Punishment Clause area were much mushier. The Harmelin/Ewing test is also pretty mushy, though it's a bit more precise (chiefly because it's highly deferential).

"Just compensation" isn't particularly mushy; it's been read, in my view plausibly, as basically being market value, which is generally a pretty easy matter to get at. "Due process" is more complex; I like some aspects of due process law (chiefly the more precise ones, which turn on historically recognized rules) and dislike others. But again that at least requires some enforcement as a matter of text and original meaning.
10.26.2007 6:18pm
Anderson (mail):
When the system is broken, injustices cannot be fixed inside the system.

I don't think that overrreaching, if that's what this court did, is always a bad thing, provided it's rare and in response to an egregious injustice. If the court did it more often and inappropriately, I'm sure that steps to correct that would be taken.
10.26.2007 6:23pm
John Kunze:
You think there aren't a few congressmen in Georgia who thought they were voting for a law that would only be applied prospectively and now wish they had voted against it?

I don't get why anyone would vote to change the law in this case and object to it being applied retrospectively.

Is it just the administrative burden of looking back at previous cases? Or is reducing an already imposed penalty supposed to decrease respect for the law?
10.26.2007 6:35pm
Angus:
John Kunze,

From what I've read, the law was applied only prospectively out of pure laziness, nothing else. They just didn't want the state to have to spend the time and money to review old cases.
10.26.2007 6:43pm
johnw:
Daniel Chapman:

I don't think I misunderstood the point you were making, but I keyed in on "better to leave the kid in prison then let him out for the wrong reason" (my paraphrase). It kind of set me off, as you seemed to imply that that was right.

Your right, context is important. I was a bit hot under the collar.
10.26.2007 7:05pm
Pluribus (mail):
Daniel Chapman wrote:

T]he REASON I think the court did more harm than good is because other states are now on notice that they can't act to reduce these sentence guidelines legislatively without opening the floodgates of retroactive application.

I don't understand why it would be bad for to require that the legislature reduce the sentences of those who are now in prison when they decide to reduce the sentences of those who will go to prison in the future. If the crime is the same, why shouldn't the time be the same? If this would be "floodgates," I say open 'em up.
10.26.2007 7:40pm
Jake (Guest):
Daniel is (I believe) positing the existence of a marginal legislator who is willing to vote for a prospective reduction but not a retroactive reduction. If you take the prospective reduction off the table, you may well get no reduction at all.
10.26.2007 9:17pm
theobromophile (www):

Why does the court say "consensual oral sex with a fifteen-year-old girl", when the girl was under the age of consent?

I don't know if Georgia has a similar scheme as Utah, but there is a difference between having consensual sex or oral sex with someone who the law determines not old enough to , albeit with their consent, and forcing the acts upon that person.

----

The remedy is fascinating. According the Court, as the minimum sentence is cruel and unusual and there is no alternative sentence, Mr. Wilson must be released from custody.

The Georgia court isn't engaging in the nonsense of trying to determine the maximum sentence permissible under the Constitution; nor must it retroactively apply the new law, despite the will of the Legislature to not do so. (If I'm reading the opinion correctly, Mr. Wilson could have appealed under cruel and unusual on direct appeal and never spent a day in jail, though the new, humane statute would have so allowed.)
10.26.2007 9:40pm
PersonFromPorlock:
tx:

PfromP... Isn't it a great thing our black-robed betters can just wave away those pesky 'rules'?

... or adhere slavishly to the rules as an excuse for not taking responsibility? Sure, to expect the court to come down on the side of morality where morality and the law seriously conflict invites abuse; but a court that can't distinguish right from wrong is literally insane.
10.26.2007 10:02pm
Pluribus (mail):
Jake wrote:

<i>Daniel is (I believe) positing the existence of a marginal legislator who is willing to vote for a prospective reduction but not a retroactive reduction. If you take the prospective reduction off the table, you may well get no reduction at all.</i>

Is such a mariginal legislator acting logically? And is an appellate court that decides otherwise acting illogically? I think not in both cases.

I see nothing wrong with court decisions that are based not just on common sense (a 17 year old who has consensual sex with a 14 year old shouldn't be sent to prison for ten years) but also can be justified logically. If the crime's the same, the time should be the same. And warnings about "floodgates" don't persuade me to the contrary.
10.26.2007 10:09pm
markm (mail):
Why would reviewing old cases take that much time and money, unless the legislature deliberately set up a byzantine procedure for retroactive sentence reduction? Reduce the sentence to the new maximum. If the subject has already served that time or more, release him. That shouldn't take more than fifteen minutes per case, and I see no reason it couldn't be handled administratively rather than through the courts.

Even if it's more complex than that, it's got to be cheaper than the cost of keeping a man locked up for an extra 9 years or so.

OTOH, I have heard claims on the internet that the legislature made the law non-retroactive specifically because of this one case, which strikes me as approaching a bill of attainder. If anyone wonders why that's undesirable as a policy rather than in Constitutional law, google for the story of how the prosecutor has been lobbying legislators using a video and a theory interpreting the video that the jury definitely rejected after viewing.
10.26.2007 10:38pm
Brian G (mail) (www):
The holder of the clemency power, the Governor, should have ended this nonsense a long time ago.
10.26.2007 10:51pm
Eugene Volokh (www):
Brian G: Does the Georgia Governor have the power to pardon?
10.26.2007 11:26pm
Wes (mail):
The GA Governor does not have the power to pardon. This is the responsibility of the State Board of Pardons and Paroles, established in 1943 to reduce political pressure regarding pardons. The Board usually does not get involved until all legal recourse has been exhausted, except for death penalty cases where delay could obviously result in a tragedy.
10.27.2007 12:07am
theobromophile (www):

The Board usually does not get involved until all legal recourse has been exhausted, except for death penalty cases where delay could obviously result in a tragedy.

That could become painfully circular. In theory, then, the Georgia Supreme Court should have denied the habeus review, as the Board could grant a pardon (but not until after the habeus review had been denied). If the Board declined to grant a pardon, the Court would have already ruled upon the habeus proceeding, and would not be able to grant relief based upon the utter ineptitude of Georgia's legislature and executive to grant just relief.
10.27.2007 12:28am
Daniel Chapman (mail):
Granted, most criminals aren't rational actors, but a lot of people believe that if you broke the law when the penalty was 5 years, you should serve the 5 years and not benefit from future changes in the law.

Whether you think it's logical or not, that's how the state legislature reached the final bill that lowered the penalty but only made it prospective. It was part of the compromise, and next time that compromise will be harder to reach. End result: there's a good chance the penalties will stay high, hurting more people.
10.27.2007 2:03am
Pluribus (mail):
Daniel Chapman wrote:

Whether you think it's logical or not, that's how the state legislature reached the final bill that lowered the penalty but only made it prospective. It was part of the compromise, and next time that compromise will be harder to reach. End result: there's a good chance the penalties will stay high, hurting more people.

It's not just me that thinks it's illogical, it's also the Supreme Court of Georgia, and a lot of contributors to this board. But you think the legislature will stubbornly persist in passing illogical laws and, as you say, hurting more people. I guess some people think it's important to be illogical, even when it hurts more people.
10.27.2007 9:37am
VincentPaul (mail):
So how much time has Mr. Wilson spent in prison?
10.27.2007 11:17am
Randy R. (mail):
This case is interesting. I wonder if the Ga. court would have written the same opinion if it involved two young men instead of one man and a woman.

Me thinks not.
10.27.2007 3:46pm
Kanchou:
It seems to me there is a "Willie Horton" issue for the law makers. If they make it retroactive, and release a bunch of people, every law makers will wonder about becoming the next Michael Dukakis if just one of them committed a note-worthy crime.

If that's the reason they don't want to make newly reduced sentences retroactive, it may not be so bad for people in other states. I.e., law makers may not opposes to this outcome, but they didn't want a voting recorders for it.
10.27.2007 4:31pm
theobromophile (www):

So how much time has Mr. Wilson spent in prison?

From what I've read, over two and a half years; he went to prison in February 2005.
10.27.2007 5:06pm
Cornellian (mail):
The Nifong-lite prosecutor who brought those charges desparately needs to be voted out of office in the next election.
10.27.2007 5:14pm
Bill Dyer (mail) (www):
I'm mildly disappointed in you, Prof. V. You're usually brave enough to resist the PC impulses that lead others into thinking that a legal result which is really disquieting must somehow be "unconstitutional."

Have you been having lunch with Justice Kennedy?
10.27.2007 6:03pm
Pluribus (mail):
Kanchou wrote:

It seems to me there is a "Willie Horton" issue for the law makers. If they make it retroactive, and release a bunch of people, every law makers will wonder about becoming the next Michael Dukakis if just one of them committed a note-worthy crime.

I still don't get this line of argument. We'not talking about serious crimes, with the possibility that a horde of dangerous criminals will suddenly be unleashed on society. We're not talking about Willie Hortons. We're talking about crimes which the legislators have decided should be punished with shorter prison terms. They're telling every potential criminal in the state, "If you commit this crime, which wasn't very serious in the first place, your sentence in going to be less in the future than it was in the past." The Georgia Supreme Court is saying that in this particular case, it is cruel and unusual punishment to require one offender to remain in prison for a much longer term when all the future offenders will get shorter terms for the same identical offense. We're not talking about releasing convicted murderers, but people who have been convicted of relatively minor offenses. Why in the world anybody would think it's great to reduce the sentence in the future, but, oh my God, we can't do that for somebody who's in prison under the old sentencing law. We would be opening the floodgates. The very foundations of society would be threatened. Sorry if I don't buy it.
10.27.2007 7:42pm
Kanchou:
Pluribus:

By "Willie Horton," I was referring to the political attack AD, not necessary the felon himself. Per Wikipedia: "According to one political writer, Horton never went by the name "Willie"; Atwater called him that "hoping to get more racial mileage."

I was putting myself cynically in the position of a Georgia law maker. There are very little political upside in reducing people's sentences retroactively, while there are plenty of downside if just one of them committed note-worthy crimes(and in this age of opposition researches, what constitutes note-worthy can be almost anything), they are plenty of downside, as Michael Dukakis found out. So if you are in the position of one of the law maker, changing the offense from felony to misdemeanor is not that controversial, you don't have problem with it. However, when it's time to vote on retroactively release people who are already convicted, you suddenly wonder, what if one of them, before the expiration of their original sentence, committed a note-worthy crime. Flashing before you eye you see the "Willie Northon" ad with this narration:

"Criminal X was convicted and sentenced for 10 year. But Senator Y voted to free him/her. After release, criminal X committed heinous crime du jour. It's all Senator Y's fall, he/she is soft on crime. Paid for by campaign for candidate Z."

Would you still take that chance? What percentage of law makers do you think would take that chance? Would you rather the judicial branch do the dirty work so your finger print won't be on it?
10.27.2007 11:50pm
Joe McDermott (mail):
If Wilson's victim were white, would a hate crime enhancement be in order?
10.28.2007 2:06am
cj (mail):
Pluribus: Comment Quote:
"Would you still take that chance? What percentage of law makers do you think would take that chance? Would you rather the judicial branch do the dirty work so your finger print won't be on it?"

I think that is termed "intestinal fortitude," and, yes, that is still valued by many of us "out here" in the real world. (As to what percentage of law makers I think would take that chance? Less than one percent. Which is why 'law makers,' in whatever guise, consistently receive low approval ratings.)
10.28.2007 3:14am
Kanchou:
CJ
You may want to re-check the attribution.

I am putting forward the speculation because that's how I see the current situation is, not what it "should be."

I put the hypothesis forward in response to people's claim that other state legislators may became less inclined to reduced sentences for future violation if they know it will be applied retroactively by judicial branch. My view is it really depends on why they wouldn't want the reduction to apply retroactively.
10.28.2007 3:55am
Pluribus (mail):
Kanchou wrote:

I put the hypothesis forward in response to people's claim that other state legislators may became less inclined to reduced sentences for future violation if they know it will be applied retroactively by judicial branch. My view is it really depends on why they wouldn't want the reduction to apply retroactively.

So we'll hold a guy in prison for ten years for committing a misdemeanor so the legislators won't be criticized? Why wouldn't people criticize the legislators for letting others who commit the same misdemeanor out with only misdemeanor sentences? Why wouldn't legislators hold everybody who commits a misdemeanor in prison for ten years so, if one of them should commit a serious crime some time during that ten years, they won't blame the legislators for letting them out? And, on this analysis, what difference does it make if the decision is prospective or retrospective? Are legislators really that stupid? Are the people who criticize them really that illogical?
10.28.2007 10:57am
Malvolio:
A lot of people seem to be saying, "The law is wrong because it reached this irrational result." Personally, it would think a law criminalizing sex between a 15-year-old and a 17-year-old would be irrational, but Mr Wilson certainly deserved some serious jail time. From Wikipedia (footnotes omitted):
The conviction was based on an amateur video tape showing Wilson engaging in sex with a 17-year-old girl during a private party, and later being offered and receiving oral sex from a 15-year-old girl. The video shows the 17-year-old girl on the bathroom floor, then later having sex with Wilson. She appeared sleepy or intoxicated during the sex act but did not ask Wilson to stop. Waking up naked and disoriented the next morning, she claimed to have been raped. Investigating the alleged rape, police later found condoms and evidence of drinking, as well as the video camera, in the motel room used for the party. A jury acquitted Wilson of raping the older girl, but convicted him of aggravated child molestation against the 15-year-old.
If the jury didn't have the child molestation count, they might very well have convicted on the rape. Wilson is out on the bricks today largely because he got a drunken adolescent to blow him. You will have to forgive me if, as a father of teen-aged girls, I don't regard this as a triumph of justice.
10.28.2007 2:48pm
Kanchou:
As a Californian, I am basing my view on the experience of the defeat of Prop. 66 in 2004. It was up 41% in the poll until opponents played up its retroactive aspect, and the vision of releasing people who were already sentenced. California voters rejected it.

http://www.lacitybeat.com/article.php?id=1436&IssueNum=78

I don't exactly talk with legislators daily, but I do interacted with their staffs(Who are likely to become legislators themselves someday due to drastic term-limited in California) more than average person. I don't think they are stupid. But

1) They tend to evaluate everything thinking about the potential news headline.
2) They may not think their voters are illogical, but rightly or wrongly, they view sentencing issue through the lens of recall of Justice Rose Bird, what happened to Dukakis, how unpopular governor Pete Wilson wrap his campaign around Polly Klass case/Three-Strike Law to win re-election.

Of course, the dynamic in Georgia may be different.
10.28.2007 3:24pm
Pluribus (mail):
Malvolio wrote:

She appeared sleepy or intoxicated during the sex act but did not ask Wilson to stop.

Stop what? Stop letting her do what she was doing? Who was doing what to whom?

Wilson is out on the bricks today largely because he got a drunken adolescent to blow him. You will have to forgive me if, as a father of teen-aged girls, I don't regard this as a triumph of justice.

He served two and a half years in prison. You don't think this was enough? Apparently the legislature does, at least for people who do the same in the future.

I sympathize with your parental concerns. Do you believe the girl's parents have any responsibility here?
10.28.2007 4:26pm
Pluribus (mail):
Kanchou wrote:

As a Californian, I am basing my view on the experience of the defeat of Prop. 66 in 2004.

This is an interesting observation, Kanchou, and worth considering. However, when a proposed law is defeated, as was the case with Proposition 66, it's next to impossible to determine why. There were many arguments against Proposition 66. Which was determinative? Or maybe all contributed to its defeat.

I'm not arguing that it's stupid for legislators to think about public opinion when they pass criminal laws. They should. Nor am I arguing that concerns about releasing dangerous felons into the public aren't legitimate. Of course they are. Not so, however, when you are dealing with non-violent misdemeanors. The possibility that somebody who commits a non-violent misdemeanor may some day graduate to a violent felony is about as real for somebody who has yet to be convicted as for somebody who has already been convicted. In my opinion, it is stupid to blame the legislator for the subsequent felony in either case. It makes no sense to hold a misdemeanor criminal in jail for a very long time on the theory that he may some day commit a serious felony and the public will blame the legislators for the serious felony, even though his misdemeanor itself wouldn't justify such a serious penalty.
10.28.2007 5:06pm
davod (mail):
I may be mistaken, but I thought there were more guys involved in this episode and the others accepted a plea bargain. This guy refused and went to court.

As far as the age of the girl is concerned. How young is too young? Nambla would love some of you posters.
10.28.2007 9:17pm
theobromophile (www):

If the jury didn't have the child molestation count, they might very well have convicted on the rape. Wilson is out on the bricks today largely because he got a drunken adolescent to blow him. You will have to forgive me if, as a father of teen-aged girls, I don't regard this as a triumph of justice.

Yes, but the jury also stated that they would not have convicted him on the molestation had they known about the 10-year minimum sentence.

Realistically, he probably would not have been convicted of rape. She didn't protest at the time; she had even had "sexual relations" with him earlier that evening. Juries are very, very reluctant to hand down a rape conviction when the two parties had known each other before; I'm sure that the prior oral sex would have sealed the deal. (IIRC, there was a case up in Fall River where a man was on video, raping a woman while she protested, and he was acquitted.)

Sadly, there are no laws against being sleazy.
10.29.2007 3:46am
Richard Aubrey (mail):
Here I thought Wilson and his significant other went off for a bit of afternoon delight.
Turns out that he and half a dozen buddies got two girls, at least one under the age of consent, drunk and high and used them pretty hard in a rented room.
I think, in other circumstances, that might be considered date rape.
It is telling that the implication is that Wilson and his SO were in this by their little, innocent selves.
Hear tell one of the other defendants got a twelve-year-old preggers while awaiting trial. But I expect, being covered by the Wilson Wonderfulness, he won't be tried for anything.
What do you think is the percentage of people who know this was a gangbang with the veneer of consent, vs. boy-girl fooling around?
10.29.2007 11:23am
David Drake:
Some comments from a Georgian on this case which is a textbook illustration of the maxim "Hard cases make bad law." My comments point resolutely in both directions:

1. Very results-driven outcome, as pointed out many times above. This case was a cause celebre from the beginning, and most people (at least in Atlanta where I live) thought that the original sentence was a travesty. I suspect the Ga. Supreme Court was looking for any way to reverse, but had already upheld the "prospective application only" feature of the new statute so didn't have that way out.

2 Although I like the result, the fact that the Ga. legislature amended the statute in response to this very case but still made the change prospective makes the rationale of the decision very troubling and, probably wrong. I concur with the remark above that this decision will make sentence reduction less likely rather than more.

3 The holding has a great potential for mischief because the habeas petition was granted by a judge other than the judge who had initially sentenced Mr. Wison. And there are LOTS of men in prison for various offenses who will now clog the Georgia justice system with habeas petitions on this ground.

4. The girl's mother stated she did NOT think Mr. Wilson should have been prosecuted.

5. Incidentally or not, everyone involved was African-American. I think that probably made the decision of the prosecutor more difficult.

6. Mr. Wilson had been a star athelete and student with a spotless past.

7. The other males involved pleaded guilty to misdemeanors and got slaps on the wrist. So (in my opinion), Wilson was punished for exercising his right to a trial.

8. Someone in the crowd should have been prosecuted for criminal stupidity for filming this. How many illustrations do we need for the proposition that one shouldn't film his or her own sexual acts, or those of his close friends, particularly when the acts are with underage people and/or constitute e.g.. sodomy or sadism?
10.29.2007 2:28pm